Wednesday , March 01, 2017 - 5:00 AM
A 39-member committee advising the governor on water policy operates without any requirements for open meetings. It is drafting a series of recommendations in closed sessions, a lack of transparency that is drawing calls for a change in state law.
Gov. Gary Herbert in 2013 created the State Water Strategy Advisory Team to study Utah’s huge long-term water supply issues and make recommendations for action by the governor, Legislature and other empowered policy-makers. All taxpayers and users of water — basically everyone in the state — may be affected for generations by whatever blueprint is submitted by the team.
However, the team lives outside the jurisdiction of the Utah Open and Public Meetings Act, so it can and does conduct its deliberations in private. Two open-government attorneys say the situation has exposed a gap in the law that should be plugged.
“It’s a loophole in the sense that it runs contrary to the spirit and intent of the open meetings law,” said Randy Dryer, who has represented Utah news organizations in government transparency cases. “Government should do its business in the open. And this could be used to circumvent the law.”
The law’s essential definition of a public body — "any administrative, advisory, executive, or legislative body of the state or its political subdivisions” — would seem to apply to the water team.
But the next line of the law says its provisions govern only entities “created by the Utah Constitution, statute, rule, ordinance, or resolution.” The team has no such anchor, having been formed by Herbert outside those listed forms of authorization.
“They are clearly discussing important matters,” Dryer said. “Water resources are of huge importance to the citizens of the state and the taxpayers. This is clearly beyond the scope and intent.”
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Jeff Hunt, another public access attorney, said the water team is similar to many groups that are governed by the law.
“It’s not unusual for government bodies to create groups like this, but you can usually trace that back to a vote or something,” Hunt said.
Those bodies follow the law’s requirements for proper public notice of meetings, for deliberations and decision-making being done in public, and narrow exceptions allowing closed meetings.
With the water team, Hunt said, “The governor, as an executive officer of the state, doesn’t have to create anything like that. He just does it.”
Hunt said he expects a move to close the loophole in next year’s legislative session.
“This has exposed a flaw in the design of the statute,” he said.
‘UNPRECEDENTED LEVEL OF PUBLIC INVOLVEMENT’
Two co-chairmen of the water team scoffed at implications that their group’s process is not open. They say the group has gathered reams of public comment over four years and its 12 issue subcommittees represent various public and private interests.
“We started with public meetings throughout the state and had a portal for online comments,” said Tage Flint, executive director of the Weber Basin Water Conservancy District and one of three team co-chairmen.
With about 40 members, the team has struggled logistically to get so many people’s input into a document to hand to the governor, Flint said.
“We concluded we would split up into drafting groups, with topic sections, and come back together when the drafts have been done,” he said. “As I view it, this drafting committee is drafting something to present that will be in full public view. I don’t think it can be any more public in terms of input on water policy.”
Rep. Tim Hawkes, R-Centerville, another co-chairman, said by email, “Despite the nonpublic nature of the process, we have had an unprecedented level of public involvement since the very beginning.”
That included survey comments and results from more than 50,000 people, data compiled by the Envision Utah group, he said.
The water team “is not a policy-making body, so it’s not subject to Utah’s Open Meetings Act,” Hawkes said. “It’s a diverse group of policy experts that the governor pulled together to make recommendations that we hope will shape the conversation about how to manage the state’s precious water resources in the face of population growth and ever-increasing demands on that scarce resource. Whatever comes out of it will, ultimately, be tried in the court of public opinion, as will any policy decisions that are or may be shaped by it.”
‘IT’S THE OLD GUARD, GOOD OLD BOYS’
Zach Frankel, executive director of the Utah Rivers Council, says he’s been frozen out of contributing his group’s views to the team.
“They don’t want alternative viewpoints,” he said. “They want marketing hype and that’s all they want. They want to ram this down the public’s throat. Their way is the only way.”
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He said the team membership is packed with water district directors, state officials and industry representatives.
“They want multi-billion-dollar boondoggle water developments subsidized with property tax collections,” Frankel said. “It’s the old guard, good old boys refusing to allow the public they claim to serve, speak.”
His group has been critical of the proposed Lake Powell Pipeline, a $1 billion-plus plan to draw water from the lake to be transferred to Kane and Washington counties; and the Bear River Development Project, which would cost an estimated $1.5 billion.
He said he has been permitted to attend committee meetings, but has not be allowed to speak or present to assembled team members.
Greater public input in the water process “could save hundreds of millions of dollars and hundreds of million of gallons of water,” Frankel said. “This is a crime, an injustice. They should disband or let the public speak to them.”
Flint rebutted criticism of the team’s operations, saying “Much is made of it from a very small minority.”
Hawkes said he sat through a presentation by Frankel of the Rivers Council’s recommendations, “and I know he’s given it to many members of the committee.”
‘NO PRACTICAL WAY’
“I suspect there are good reasons he wasn’t invited to participate (on the team), because he has a reputation for attacking other people and questioning their motives in harsh terms — usually in the media,” Hawkes said.
“Let’s be clear what we mean by public comment here; it means Rivers Council comment,” Hawkes said. “Because, to my knowledge, they are the only group that’s tied themselves in knots over this issue and continue to try in every way possible to question the methods and intentions of the group.”
Hawkes, who before election to the Legislature was an attorney and policy adviser for the conservation group Trout Unlimited, said the water team has met in good faith to “hammer out a thoughtful, balanced document to inform current and future public debates over water.”
He said applying the open meetings law to the team would be problematic.
“We have 12 teams meeting on various pieces of the draft document, and there is no practical way for those groups to stop, notice meetings, and take public comment,” Hawkes said. “Nor would any meaningful purpose be served by having ‘public’ involvement.”
Team members are volunteers and receive no compensation from the state for the work, said Kirsten Rappleye, Herbert’s spokeswoman.
“The group's work was intended to sunset in 2014, but the process has taken much longer, largely due to the lack of support staff, and the extensive amount of collaboration and public input they've received,” she said by email.
UTAH OPEN AND PUBLIC MEETINGS LAW - EXCERPTS
(2) It is the intent of the Legislature that the state, its agencies, and its political subdivisions:
(a) take their actions openly; and
(b) conduct their deliberations openly.
(a) "Public body" means any administrative, advisory, executive, or legislative body of the state or its political subdivisions that:
(i) is created by the Utah Constitution, statute, rule, ordinance, or resolution;
(ii) consists of two or more persons;
(iii) expends, disburses, or is supported in whole or in part by tax revenue; and
(iv) is vested with the authority to make decisions regarding the public's business.
You can reach reporter Mark Shenefelt at firstname.lastname@example.org or 801 625-4224. Follow him on Twitter at @mshenefelt and like him on Facebook at https://www.facebook.com/SEmarkshenefelt.
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